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Benefits Review Board


BENEFITS REVIEW BOARD
CIRCUIT COURT OUTLINE


TABLE OF CONTENTS

Prepared By
Office of General Counsel
Benefits Review Board
United States Department of Labor


FORWARD AND LIST OF RECENT PRONOUNCEMENTS

INTRODUCTION

PART IDEFINITIONS

A. Miner

1. Coal Mine; Coal Mine Dust

2. Status/Function/Situs & Situs/Function Tests

a. Status of the Coal
b. Function Test
c. Situs Test

3. Construction/Transportation Workers

4. General Case Listings For Covered and Not Covered Coal Mine Employment
[listed in Circuit order]

a. Cases: Covered Coal Mine Employment
b. Cases: Not Covered Coal Mine Employment
B. Survivors/Dependents
[Digest Headings: Widow-Subsequent Remarriage; SSA Benefits As Miner's Property; Impact of State Law; Conveyance of a Home; Disabled Child]
C. Pneumoconiosis
[Digest Headings: Anthracosis in Lymph Nodes]
D. Total Disability
[Digest Headings: Establishing Total Disability Under the Act; Age as a Cause of Disability]
E. Length of Coal Mine Employment
F. Usual Coal Mine Work
[Digest Headings: Voluntary Overtime]
G. Comparable and Gainful Work
H. Responsible Operator
[Digest Headings: Changing Form of Business Entity; Withdrawal of Controversion; Federal Government as Operator; Notice to Carrier; Identifying the Responsible Operator]

PART II PROCEDURAL ISSUES

A. Requirement to File State Workers'

Compensation Claim; Offset

[Digest Headings: Section 725.535(b); Validity]
B. Consequences of Filing a Part B Claim
[Digest Headings: Converting Part B Claims to Part C; Prior Findings of Entitlement]
C. Payment of Benefits
1. Generally; Assessment of Interest On Past Due Benefit Installments.
2. Under the 1981 Amendments to the Act
[Digest Headings: Trust Fund Liability]
3. Overpayments
a. Erroneous Information
b. Income and Expenses
c. Defeat the Purpose of the Act
d. Changed Position for the Worse
e. Miscellaneous
D. Applicable Law
[Digest Headings: Application of Current Law By Appellate Tribunal]
E. Viability of Claims
1. Abandonment
[Digest Headings: Distinguishing Sections 725.409 and 725.410]
2. Merger of Claims/Duplicate Claims
a. Tenth Circuit's Duplicate Claim Approach
b. Material Change of Conditions
1). Seventh Circuit
c. Merging Duplicate Claims
d. Duplicate Survivor's Claims
F. Modifications
1. Generally
2. Procedural issues
3. Mistake of fact/change in conditions
G. Commencement of Benefits
1. Onset of Total Disability Due to Pneumoconiosis
a. Section 727.302; Validity
b. Generally
2. The Effect of Continued Employment
H. Scope of Review
1. Generally; Timeliness
a. Thirty Day Notice; Section 725.458
2. Administrative Procedure Act
3. Law of the Case
4. Issues on Appeal
a. Board's Authority
b. Jurisdiction
[Digest Headings: Jurisdiction on Interest Cases]
I. Policies in General
1. Settlements and Releases

PART III ADMINISTRATIVE PROCESSING OF CLAIMS

A. The Claims Process
1. Filing of Claims/Appeals, Service, Sufficiency of Pleadings
[Digest Headings: Actual Knowledge of Service; Sufficiency of Pleadings (Cross-appeals); Timely Filing of Appeals; Interlocutory Appeals; Validity of Section 802.206(e)]
2. The District Director's Role and Representative
[Digest Headings: Deference to the Director in Interpreting Regulations; Relationship Between District Director and the Director; Validity of DOL Denial Letter]
3. Claimants' Rights [Including Criteria for Ordering a Physical Examination]
B. Full and Fair Hearing
1. Right to a Hearing; Waiver
2. Due Process
3. Right to Counsel
a. Role of Government Attorney
[Digest Headings: Absence of Counsel; Acts of Counsel Binding on Party]
4. Admission of Evidence
C. Evaluation and Weighing of Evidence
1. Elements of Entitlement
a. Generally; Interpretation of Medical Data
b. Disability
[Digest Headings: Date at Which Disability is Judged; Inferring Total Disability]
c. Existence of Pneumoconiosis
d. Cause of Disability and Pneumoconiosis
[Digest Headings: Concurrent Causes of Disability; Silent Evidence]
2. Specific Evidentiary Principles
a. Blevins Test for Admissibility
b. Later Evidence
c. True Doubt Rule
d. Adverse Inferences
3. Medical Reports
a. Physicians: Qualifications/Treating/Non-Examining
b. Hostility
4. Miscellaneous
a. Lay Testimony
b. X-Rays, Readers, Quality Standards
[Digest Headings: Distinguishing "B" Readers; Section 413(b) Prohibition]
c. Autopsy and Biopsy Evidence, Quality Standards
d. Ventilatory and Blood Gas Studies, Quality Standards
e. Vocational Experts and Evidence
f. Contraindication of Continued Employment

PART IV ESTABLISHING ENTITLEMENT UNDER 20 C.F.R. PART 718

A. In General
1. Applicability
2. Validity
3. Quality Standards
B. Existence of Pneumoconiosis
1. Section 718.202(a)(1): X-ray Evidence
2. Section 718.202(a)(2): Biopsy or Autopsy Evidence
3. Section 718.202(a)(3): Presumptions
[NOTE: for digests and discussion of Sections 718.304, 718.305 and 718.306 please refer to Parts V and VII of this outline]
4. Section 718.202(a)(4): Medical Reports
C. Pneumoconiosis Arising Out of Coal Mine Employment
D. Total Disability: Section 718.204
1. Generally
2. Section 718.204(c)(1)
3. Section 718.204(c)(2)
4. Section 718.204(c)(3)
5. Section 718.204(c)(4)
6. Section 718.204(c)(5)
E. Cause of Disability: Section 718.204(b)
F. Survivors' Claims Without Benefit of a Presumption: Section 718.205
[NOTE: for digests and discussion of Section 718.303, please refer to Part VII of this outline]

PART V STATUTORY PRESUMPTIONS IN MINERS' CLAIMS

A. Section 411(c)(1)
B. Section 411(c)(3)
C. Section 411(c)(4)

PART VI REGULATORY PRESUMPTIONS

A. 20 C.F.R. 727.203 Interim Presumption
1. Section 727.203(a)(1)
2. Section 727.203(a)(2)
3. Section 727.203(a)(3)
4. Section 727.203(a)(4)
5. Section 727.203(a)(5)
B. Rebuttal of the Interim Presumption
1. Section 727.203(b)(1), (b)(2)
a. Total disability is without regard to cause
b. Rebuttal can not be established on the basis of no impairment
c. Total disability from a respiratory standpoint
d. Comparable and Gainful Work
2. Section 727.203(b)(3)
a. Third Circuit
b. Fourth Circuit
c. Sixth Circuit
d. Seventh Circuit
e. Eighth Circuit
f. Ninth Circuit
g. Tenth Circuit
h. Eleventh Circuit
3. Section 727.203(b)(4)
C. 20 C.F.R. 410.490 Interim Presumption
[Claims Filed Prior to March 31, 1980]
1. Miners with Ten or More Years of Coal Mine Employment
2. Miners with Less than Ten Years of Coal Mine Employment

PART VII SURVIVORS' CLAIMS

A. Derivative Entitlement
B. Section 411(c)(1)
C. Section 411(c)(2)
D. Section 411(c)(3)
E. Section 411(c)(4)
F. Section 411(c)(5)

PART VIII ATTORNEY FEES

A. Board Review of Attorney Fee Awards Made Below
1. General Overview
2. Successful Prosecution of the Claim
3. Jurisdiction
4. Issues on Appeal of Attorney Fee Awards
a. Opposition to Attorney Fees
b. Counsel's Appeal of Substantial Reductions in the Requested Fee
1). The Hourly Rate
5. Liability for Attorney Fees
6. Miscellaneous Issues
 



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